The High Court of England and Wales has held that where copyright infringement claims are governed by foreign law, the preclusive effect of an earlier foreign judgment must also be determined under the relevant foreign law, and not English law. The ruling came in a dispute between Aviator LLC and Spribe OÜ over the popular ‘Aviator’ crash game and its associated intellectual property rights.

The dispute concerns competing claims over the copyright, trademarks and branding associated with the ‘Aviator’ crash game. Aviator alleged that Spribe had copied its copyrighted artwork and relied on earlier decisions of the Georgian courts to argue that those findings should bind the English proceedings through the doctrine of issue estoppel. Spribe, however, contended that the preclusive effect of the Georgian judgments in relation to foreign copyright claims must be determined under the applicable foreign law rather than English law.

Deputy High Court Judge Michael Tappin KC held that, under the Rome II Regulation, the law applicable to copyright infringement claims includes the rules governing the preclusive effect of prior judgments. The Court rejected Aviator’s contention that issue estoppel is invariably governed by English law as the lex fori, observing that the applicable foreign law determines whether and to what extent an earlier foreign judgment binds the parties in proceedings concerning foreign intellectual property rights.

The Court further held that the English doctrine of issue estoppel is neither a matter of procedure nor an overriding mandatory rule capable of displacing the applicable foreign law. It concluded that applying foreign rules on the preclusive effect of judgments would not ordinarily offend English public policy.

Answering the preliminary issue, the Court held that the determination of the preclusive effect, if any, of the Georgian judgments in relation to claims governed by foreign law is itself governed by the relevant foreign law. It also declined Aviator’s request for a separate preliminary trial on copyright ownership, observing that such an exercise could prove unnecessary depending on the outcome of the issue estoppel questions.